Wakilii

Nuuhu Kalyesubula & 2 others v Uganda (Cr.Appeal No. 70 of 2008)

Court of Appeal · [2010] UGCA 5 · 2010 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second criminal appeal from High Court decision on first appeal convicting appellants of embezzlement
Decision
Appeal dismissed; conviction and sentence for embezzlement upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a second appeal, the Court of Appeal held that the evidence proving the appellants were employees of Evatex Co. Ltd who accessed the employer's store by virtue of their employment and removed bales of clothes fell squarely within embezzlement under s.268(b)(e) and (g) of the Penal Code Act. The court found the testimony of eyewitnesses PW3 and PW5 constituted direct rather than circumstantial evidence, and that the audit proved a loss of 1246 bales valued at UGX 202,745,000. Treating the case as one of the clearest cases warranting re-evaluation by a second appellate court, it held the first appellate judge properly evaluated the evidence and dismissed the appeal, upholding the conviction and sentence.

Outcome

Appeal dismissed; conviction and sentence for embezzlement upheld

Facts

The three appellants were employees of Evatex Co. Ltd. The first and second appellants worked as loaders/store attendants and the third as a receptionist/sales lady. Company policy prohibited any employee from entering the Nateete store alone; retrieval of merchandise required the appellants to travel with senior officials, and the outer gate key was held by the landlady's house maid (PW3). Unaware of this policy, PW3 gave the gate key to the first appellant on several occasions, when he arrived alone or with the second and occasionally third appellant, in the early morning or late evening. On such visits the appellants removed bales of clothes without top officials' knowledge. PW5 saw the first appellant deliver bales to his sister's home. An audit revealed that between January and December 2006 the company lost 1246 bales of clothes valued at UGX 202,745,000. The appellants disappeared during internal investigation and were later arrested and charged.

Issues

  1. Whether the first appellate court (High Court) properly evaluated the evidence in convicting the appellants of embezzlement.
  2. Whether the evidence against the appellants was direct or merely circumstantial.
  3. Whether the appellants' conduct amounted to embezzlement under s.268(b) of the Penal Code Act.

Orders

  • Appeal dismissed for lack of merit.
  • Conviction and sentence of the first appellate court upheld.

Rules and key headnotes

Embezzlement — Employee accessing employer's property by virtue of office — Penal Code Act s.268(b)(e)(g)
Where an employee, by virtue of his or her employment status, accesses the employer's property and steals it, the conduct constitutes embezzlement within the meaning of s.268(b)(e) and (g) of the Penal Code Act.
Direct versus circumstantial evidence — Eyewitness testimony of the criminal act
Testimony of eyewitnesses who personally observed the accused remove and deliver the stolen property constitutes direct evidence of the offence and cannot be treated as circumstantial.
Second appeal — Re-evaluation of evidence by second appellate court
Except in the clearest of cases, a second appellate court will not re-evaluate the evidence as a first appellate court would; but where the case is one of the clearest cases it is incumbent on the second appellate court to re-evaluate the evidence.

Legislation cited (4)

Cases cited (1)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nuuhu Kalyesubula & 2 others v Uganda (Cr.Appeal No. 70 of 2008) [2010] UGCA 5 (8 February 2010)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.